The Disciplined Forces Commission says not all the "extremely high" number of extra-judicial killings ascribed to the police force should be considered unlawful. But commissioner Maggie Beirne disagrees saying the panel's legalistic approach ignores the human rights aspect of such killings.

The panel in its interim report to parliament notes, "Indeed, it is the unusual level of killing by the police that in part led very directly to the establishment of this Commission,"

But it goes on to say "it is not the killing per se... but the circumstances in which it has occurred which determine whether or not the killing is lawful."

Irish human rights activist Beirne, who helped draft the report, says this chapter examining extra-judicial killings does not adequately reflect the seriousness of the situation.

In her appendix to the report, she refers to the period January 2002-June 2003, when 62 civilians were killed by the police or in joint forces operations. 21 police officers were also killed during that same period.

"As I write this document, further deaths at the hands of the police are occurring. This level of killing is totally unacceptable."

The report, obtained by Stabroek News, notes that Guyana's Constitution, while recognising the primacy of the right to life, speaks to the nature of that right not being absolute.

Article 138 (1) of the Constitution provides that "No person shall be deprived of his life intentionally save in execution of a sentence of a court in respect of an offence under the Laws of Guyana of which he has been convicted."

While Article 138 (2) provides that without prejudice to any liability for a contravention of any other law with respect to the use of force in such cases mentioned here, a person shall not be regarded as having been deprived of his life in contravention of this article if he dies as a result of the use of force to such extent as is reasonably justifiable in the circumstances of the case:

(a) for the defence of any person from violence or for the defence of property;

(b) in order to effect a lawful arrest or to prevent the escape of a person lawfully detained;

(c) for the purpose of suppressing a riot, insurrection or mutiny; or

(d) In order to prevent the commission by that person of a criminal offence...

But the panel does note that while a police rank has the lawful authority to apprehend, to prevent an escape from lawful custody or to maintain law and order this does not translate into a right to use deadly force. However, circumstances may exist or arise which may render even the use of deadly force justifiable.

One issue which came to the attention of the Commission was the fact that there may be some misperception that arises in relation to the legal use of deadly force.

They adopted the position that if a person accused of a felony resists a policeman's attempt to arrest for that offence, he may not be simply resisting lawful apprehension for that felony. In fact, he may be doing a dangerous act which could potentially result in murder, rather than manslaughter, despite the absence of any subjective or objective intention to cause serious bodily harm to policeman. This is because the constable has authority by law to arrest in such a case.

And since the member of the GPF is acting under legal authority or duty to effect the arrest, the common law renders justifiable the use of deadly force by the member of the GPF in order to defend himself against such a dangerous act of resistance.

Nevertheless, in so doing the police ought to be guided from their training by the cardinal doctrine that such force must be the minimum necessary to achieve the objective, the Commission said.

"There must be apparent necessity for the killing; for if the officer were to kill after the resistance had ceased ...or if there were no reasonable necessity for the violence used on the part of the officer, the killing would be manslaughter at the least."

They also noted that the use of deadly force could be equated with reasonable or even minimum force, "which is the underpinning of the principle by which members of the GPF are guided."

"The question of whether the degree of force used is reasonable pales into insignificance and the issue becomes simply whether the resistance reasonably poses harm to the arresting member of the GPF. If it does, the use of even deadly force is justifiable on the basis that it is reasonable to use such force to prevent the infliction of serious bodily harm to the lawful arrestor."

The commission said even the term extra-judicial killings can be problematic in its use since it can be killings by law enforcement agencies, which may or may not be unlawful whether or not the country has the death penalty.

Indeed, they say it is the popular tendency to use the term even if such killings are plainly lawful. Extra-judicial killings was a key issue during the recent hearings of the commission.

The report concluded however that should the allegations be true, the Commission is driven to emphasise that members of the Police Force cannot lawfully use deadly force in the course of arresting felons or suspected felons who have not resisted or have surrendered, or even on those who have resisted without posing any danger of physical harm to the arrestor.

The commission did note that it has received a large body of evidence in which the Guyana Police Force has been accused of summary execution of suspects who have not resisted arrest or have surrendered.

"One must distinguish between mere resistance and resistance which poses the danger of physical harm. If the resistance does not pose any danger of physical harm, there can be no constructive or implied malice under the felony-murder rule (i.e. an intent to kill or cause serious bodily harm), and the use of deadly force is unjustifiable."

But they believe an understanding of the application of the felony-murder rule may explain some of the decisions of the prosecutorial agencies.

They also point out that no presenter before the commission, including the Office of the DPP, the GBA (Guyana Bar Association) or the GHRA (Guyana Human Rights Association), made any recommendation for the abolition of the felony-murder rule.

However, the GHRA in its submissions to the Commission did point out that "the circumstances under which the police may use deadly force are indefensibly broad, resulting from constitutional provisions which are archaic, but which have survived several constitutional revisions." The GHRA also said it tried unsuccessfully during the constitutional reform process in 1997 and during the parliamentary debate on the Fundamental Rights Act in July 2003 to amend the Article. They recommended that as a deterrent to extra-judicial killings the protection provided to the police by Article 138 should be repealed.

The Commission said the view was expressed that the hands of the prosecution and the GPF should not be weakened at this time when there is an upsurge of felonies of violence. Accordingly, the Commission does not recommend that the felony-murder rule be dropped, given that it will have implications beyond the problem of police killings.

But Beirne in her appendix to the report said "This single legal point is given far too much weight within the text," pointing out that despite the emphasis the commissioners were unwilling to endorse proposals for a review of the felony/misdemeanour distinction.

"To suggest that the problem of extra-judicial killings in Guyana can be reduced to one of public misunderstanding is to ignore the gravity of the problem, and does a serious injustice to the wide range of submissions received on this issue," says Beirne who has since resigned from the commission and returned to Northern Ireland.

Recommendations

The Commission says the quality of policemen allowed to carry firearms leaves much to be desired.

"The ranks who are usually assigned frontline duties which have the potential for danger seem to be those junior ranks to whom firearms are thoughtlessly issued," they note in the report.

The Commission said the mere fact that a member of the Guyana Police Force is allowed the use a firearm should carry with it the presumption that he is sufficiently responsible to exercise proper discretion as to when he can resort to the use of the firearm.

It is doubtful whether members of the public can safely rely on this presumption, they say. The commission recommends that not only should ranks be trained and properly instructed as to the circumstances when a firearm can be used but only those who have clearly demonstrated a requisite degree of responsibility should be allowed to carry firearms.

They say that on occasions where it is considered necessary to equip junior ranks with firearms for frontline duties and the responsibility element is doubtful in such ranks, they should be under the control of a mature, responsible and experienced supervising rank.

The commission is of the view that, with the current international emphasis on greater respect for human rights, it will eventually become necessary to review the felony-murder rule.

The consequence will be that the latitude of the police to employ deadly force will be severely curtailed. The commission recommends that immediate steps be taken to adjust the attitude of the Guyana Police Force in the employment of deadly force in anticipation of such an abolition.

The Commission has received no recommendation that this rule should be immediately abolished but foresees that Guyana cannot for much longer have an important aspect of its criminal law hinging on a fictional intent which renders the primary right to life less absolute especially as the death penalty has been held to be constitutional.

The commission has made a number of proposals in this area:

* To establish a dedicated or distinctly identifiable Coroner's Court to reduce the backlog on inquests and inquiries.

* To provide the Coroners with independent investigative resources.

* To make it obligatory to hold an inquest in all cases where police officers were involved in a person's death.

* To ensure greater independence in the arrangements for investigating complaints against the police.

Beirne says although the commissioners did take on board some of her criticisms, she still does not concur with the text proposed by other commissioners. As elsewhere in the report, the commission was unwilling to draw on international human rights standards and experience.

It is her opinion that part of the response to the situation in which the country finds itself must lie in a clear and unequivocal condemnation by all of all killings.

"I believe that this condemnation is not sufficiently articulated in the text and, if anything, the extensive exploration of the many circumstances in which the right to life can justifiably and lawfully be taken in Guyanese law, gives the opposite message.